Fourth Amendment Protections for Businesses

In United States v. Hall, 47 F.3d 1091 (11th Cir. 1995), the Eleventh Circuit Court of Appeals discussed the difference between a business and an individual’s reasonable expectation of privacy in the area around their home or business (called the curtilage). In the case, a government agent seized a bag of shredded documents from a dumpster located on the property of Bet-Air, Inc. Hall filed a motion to suppress the evidence on the grounds that the search and seizure was a violation of the Fourth Amendment. Review United States v. Hall (1995) and discuss the following:

• What was the Court of Appeal’s decision?
• Was the search and seizure a violation of the Fourth Amendment? Why or why not?
• Would the result have been different if the dumpster was on private property rather than on commercial property?
• Suppose you were an executive at Bet-Air. What recommendations would you make to help Bet-Air assert an expectation of privacy in the dumpster?

Your initial response should be a minimum of 200 words.

US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995
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47 F.3d 1091 (1995)
UNITED STATES of America, Plaintiff-Appellee,
v.
Terrence HALL, Defendant-Appellant.
No. 93-4456.
United States Court of Appeals, Eleventh Circuit.
March 16, 1995.
1092
*1092 Joel Hirschhorn, Coral Gables, FL, for appellant.
Kendall B. Coffey, U.S. Atty., Phillip DiRosa, Linda Collins Hertz, Lisa T. Rubio,
Asst. U.S. Attys., Miami, FL, for appellee.
Before KRAVITCH and HATCHETT, Circuit Judges, and CLARK, Senior Circuit
Judge.
HATCHETT, Circuit Judge:
In February, 1993, a jury convicted Terrence Hall, chairman of Bet-Air, Inc., a
closely held Miami-based seller of spare aviation parts and supplies of fourteen
counts of violating various federal laws in connection with Bet-Air’s sale of
restricted military equipment parts to Iran. After conviction, the district court
sentenced Hall to a prison term of fifty-one months. We affirm.
1093
*1093
FACTS
In June, 1988, Special Agent William T. Parks of the United States Customs
Service began investigating allegations that Bet-Air was supplying restricted
military parts to Iran. Bet-Air subsequently supplied records in response to two
enforcement subpoenas relating to the investigation. On June 27, 1989, Parks and
an Assistant United States Attorney met with two attorneys then representing BetAir. At the meeting, Bet-Air agreed to voluntarily supply the government with
requested corporate minutes within ten days.
On July 3, 1989, Agent Parks entered Bet-Air’s property and removed a bag of
paper shreddings from a garbage dumpster located near the Bet-Air offices in a
parking area reserved for Bet-Air employees. In order to get to the dumpster,
Parks had to travel forty yards on a private paved road. No signs indicated that the
road was private, and Parks testified that at the time he traveled on the road, he
did not know he was on private property. Thus, notwithstanding its location on BetAir’s private property, the dumpster was readily accessible to the public. One of the
reconstructed shredded documents was titled “British Airways — Bet-Air, Inc.,
Minutes of Meeting.” On July 5, 1989, Parks met with Bet-Air’s new attorney who
provided Parks with the Bet-Air corporate minutes previously requested. Those
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
documents did not include the minutes from the British Airways-Bet-Air meeting.
Parks used the shredded documents as the basis for obtaining a search warrant of
the Bet-Air premises. Pursuant to the search warrant, Parks and other law
enforcement officers seized numerous documents and other records from Bet-Air’s
premises.
PROCEDURAL HISTORY
In August, 1990, a federal grand jury in the Southern District of Florida returned a
fourteen count indictment against Hall and several codefendants. In April, 1991,
Hall moved to suppress all evidence derived from the warrantless search of the
garbage dumpster and all evidence seized during the search pursuant to a warrant
of the Bet-Air premises.[1] The magistrate judge found that Bet-Air had a
“substantially reduced expectation of privacy in the roadway and surrounding area,
including the garbage dumpster” and, therefore, recommended that the motion to
suppress be denied. The district court adopted the magistrate judge’s report and
recommendation. Following a jury trial, Hall was convicted as charged on all
counts of the indictment and sentenced to a term of fifty-one months imprisonment
as to each of the fourteen counts, the sentences to run concurrently with each
other. Hall appeals.
ISSUES
In this appeal, Hall raises the following claims: (1) the district court erred in
denying his motion to suppress documents and records seized pursuant to the
execution of a search warrant where the probable cause for the warrant was
obtained through a warrantless search of a dumpster located in Bet-Air’s
“curtilage”; (2) the prosecutor’s closing remarks were improper and prejudicial;
and, (3) the district court improperly exercised its sentencing discretion in applying
the Sentencing Guidelines to a pre-Guidelines case.
CONTENTIONS
Hall contends that Bet-Air had a reasonable expectation of privacy in the shredded
documents. He argues that Bet-Air took at least four affirmative measures to
safeguard its privacy interest in the documents: the documents were shredded; the
documents were sealed inside a green garbage bag; the green garbage bag was
placed inside an enclosed garbage dumpster; and the garbage dumpster was
within the “commercial curtilage” adjacent to Bet-Air offices forty yards from public
property. Hall also argues that Parks’s entry onto Bet-Air’s premises constituted
unauthorized entry onto private property.
1094
The government contends that Bet-Air’s subjective expectation of privacy in its
garbage was not objectively reasonable because the company did not take steps
to limit the public’s access to the dumpster. Additionally, *1094 the government
contends that at the time of the entry, Agent Parks believed the road leading to
Bet-Air’s premises to be a public road.
DISCUSSION
A. Suppression Motion
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
We review the district court’s denial of a motion to suppress evidence as a mixed
question of law and fact. United States v. Wilson, 894 F.2d 1245, 1254 (11th
Cir.1990). The findings of fact are viewed under the clearly erroneous standard,
and the district court’s application of the law to those facts is subject to de novo
review. Wilson, 894 F.2d at 1254. The facts are to be construed in the light most
favorable to the party who prevailed below. Wilson, 894 F.2d at 1254.
In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988),
the Supreme Court held that a warrantless search and seizure of garbage left in a
plastic bag on the curb in front of, but outside the curtilage of, a private house did
not violate the Fourth Amendment. The Court, relying on Katz v. United States,
389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J.,
concurring), held that such a search would only violate the Fourth Amendment if
the persons discarding the garbage manifested a subjective expectation of privacy
in their garbage that society accepts as objectively reasonable. Greenwood, 486
U.S. at 39, 108 S.Ct. at 1628.
In Greenwood, law enforcement officials had on two separate occasions asked the
neighborhood’s regular trash collector to pick up and turn over to them the plastic
garbage bags which had been left on the curb in front of the house in which
Greenwood lived. The officers’ search of the garbage turned up items consistent
with narcotics use. These items formed the basis for affidavits in support of
warrants to search Greenwood’s home. The police discovered narcotics in both
searches, and Greenwood subsequently moved to suppress the evidence as fruits
of warrantless searches. The Court found that by disposing of the garbage in
opaque plastic bags, Greenwood demonstrated a subjective expectation of privacy
in the discarded garbage. Greenwood, 486 U.S. at 39, 108 S.Ct. at 1628. The
Court concluded, however, that Greenwood had exposed his garbage to the public
sufficiently to render his subjective expectation of privacy objectively
unreasonable. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628.
As support for his assertion that Bet-Air’s expectation of privacy in its discarded
garbage was objectively reasonable, Hall points to the fact that Parks obtained
documents that were shredded, then placed inside a green garbage bag, which
was in turn placed inside a garbage dumpster. We believe that the manner in
which Bet-Air disposed of its garbage serves only to demonstrate that Bet-Air
manifested a subjective expectation of privacy in its discarded garbage. See
Greenwood, 486 U.S. at 39, 108 S.Ct. at 1628. Whether Park’s actions were
proscribed by the Fourth Amendment, however, turns on whether society is
prepared to accept Bet-Air’s subjective expectation of privacy as objectively
reasonable. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures. …” U.S. Const. amend. IV. It is well established that the Fourth
Amendment protections apply to commercial premises. “The businessman, like the
occupant of a residence, has a constitutional right to go about his business free
from unreasonable official entries upon his private commercial property.” See v.
Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). The
Fourth Amendment, moreover, “protects people, not places.” Katz, 389 U.S. at
351, 88 S.Ct. at 511. Thus, whether the Fourth Amendment’s protections are
invoked to protect the sanctity of the home or of commercial property, the
touchstone of the inquiry into the objective reasonableness of an expectation of
privacy is whether the governmental intrusion infringes upon the personal and
societal values the Fourth Amendment protects. Oliver v. United States, 466 U.S.
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
1095
*1095 170, 182-83, 104 S.Ct. 1735, 1743-44, 80 L.Ed.2d 214 (1984).[2]
The fact that the test of the legitimacy of an expectation of privacy is the same in
both the residential and commercial sphere does not mean, however, that the
factors which tend to be of probative value in resolving the inquiry when the
governmental intrusion involves a residence, are to be accorded the same weight
when the inquiry is directed at the legitimacy of a privacy expectation in
commercial property. The Supreme Court’s treatment of the expectation of privacy
that the owner of commercial property enjoys in such property has differed
significantly from the protection accorded an individual’s home. Donovan v.
Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 2537-38, 69 L.Ed.2d 262 (1981).[3]
Such distinctions are inevitable given the fundamental difference in the nature and
uses of a residence as opposed to commercial property. These distinctions are
drawn into sharp focus when, as in this case, the government intrudes into the
area immediately surrounding the structure. In order for persons to preserve
Fourth Amendment protection in the area immediately surrounding the residence,
they must not conduct an activity or leave an object in the plain view of those
outside the area. See United States v. Dunn, 480 U.S. 294, 316, 107 S.Ct. 1134,
1147, 94 L.Ed.2d 326 (1987) (Brennan, J., dissenting). The occupant of a
commercial building, in contrast, must take the additional precaution of
affirmatively barring the public from the area. The Supreme Court has consistently
held that the government is required to obtain a search warrant only when it
wishes to search those areas of commercial property from which the public has
been excluded. See Dunn, 480 U.S. at 316, 107 S.Ct. at 1147 (Brennan, J.,
dissenting); See v. Seattle, 387 U.S. at 545, 87 S.Ct. at 1740.
Whether Bet-Air’s subjective expectation of privacy was objectively reasonable,
that is, whether Park’s actions infringed on any societal values the Fourth
Amendment protected, requires, we believe, an inquiry into the nature of the
privacy interest asserted and the extent of governmental intrusion. The Supreme
Court’s teachings in Greenwood will guide our inquiry.
Relying on the fact that the dumpster was within the “commercial curtilage” of BetAir’s property and that it could only be accessed by traveling forty yards on a
private road, Hall asserts that the company’s subjective expectation of privacy was
objectively reasonable. Hall’s argument has two parts: Parks’s trespass onto
private property and the dumpster’s proximity to Bet-Air’s offices.
1096
The dumpster’s location on Bet-Air’s private property does not contribute
significantly to a finding that the company’s expectation of privacy was objectively
reasonable. Hall’s heavy emphasis on Parks’s trespass onto Bet-Air’s private
property is misplaced. The law of trespass forbids intrusions onto *1096 land that
the Fourth Amendment would not proscribe. See Oliver, 466 U.S. at 183, 104 S.Ct.
at 1743. We note that although the road leading to Bet-Air’s dumpster was private,
the magistrate judge found that no “objective signs of restricted access such as
signs, barricades, and the like” were present. Moreover, the magistrate judge also
found that at the time Parks travelled the road, he believed it was a public road.
Hall has not come forth with any evidence disputing Parks’ assertion. We also note
that the Supreme Court has long since uncoupled the application of the Fourth
Amendment’s protections from the common law doctrine of trespass. The Fourth
Amendment’s reach does not turn upon the mere presence or absence of physical
intrusion into an enclosure. Katz, 389 U.S. at 353, 88 S.Ct. at 512.[4] “The
existence of a property right is but one element in determining whether
expectations of privacy are legitimate.” Oliver, 466 U.S. at 183, 104 S.Ct. at 1744;
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
see also Rakas v. Illinois, 439 U.S. 128, 143, n. 12, 99 S.Ct. 421, 430, n. 12, 58
L.Ed.2d 387 (1978) (noting that “even a property interest in premises may not be
sufficient to establish a legitimate expectation of privacy with respect to particular
items located on the premises or activity conducted thereon”).
As we noted earlier, the owner of commercial property has a reasonable
expectation of privacy in those areas immediately surrounding the property only if
affirmative steps have been taken to exclude the public. Greenwood, moreover,
demonstrates that one indicator of the objective reasonableness of an expectation
of privacy in discarded garbage is the degree to which persons expose their
garbage to the public. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628. We do not
read Greenwood as measuring the degree of exposure only through reference to
that which is in plain view. In Greenwood, the Supreme Court considered the
extent to which the public had been afforded access to the discarded trash.
Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628. Admittedly, the Court, in
Greenwood, was not faced with an intrusion onto private property. As we have
already demonstrated, however, the probative value of the fact that the dumpster
was located in the area immediately surrounding Bet-Air’s property is substantially
attenuated due to the lack of any evidence that Bet-Air took steps to exclude the
public. Hall argues that the government has not demonstrated that the general
public was invited onto Bet-Air’s private property. We do not believe this is the
appropriate inquiry when an expectation of privacy is asserted in the area
immediately surrounding a commercial building. Rather, the Supreme Court has
consistently stated that a commercial proprietor has a reasonable expectation of
privacy only in those areas where affirmative steps have been taken to exclude the
public. Cf. Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U.S.
861, 865, 94 S.Ct. 2114, 2115, 40 L.Ed.2d 607 (1974). This failure to exclude the
public takes on increased significance when the asserted expectation of privacy is
in discarded garbage. The common knowledge that garbage left on the side of a
public street is “readily accessible to animals, children, scavengers, snoops and
other members of the public” renders an expectation of Fourth Amendment
protection unjustified. Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628. A
commercial proprietor incurs a similarly diminished expectation of privacy when
garbage is placed in a dumpster which is located in a parking lot that the business
shares with other businesses, and no steps are taken to limit the public’s access to
the dumpster. It is common knowledge that commercial dumpsters have long been
a source of fruitful exploration for scavengers.
1097
Hall’s other arguments in support of the objective reasonableness of Bet-Air’s
expectation *1097 of privacy are unpersuasive. They can be reduced to the
assertion that the dumpster was located within the “commercial curtilage” of BetAir’s property and that a private garbage collection company collected the
garbage.
“The curtilage concept originated at common law to extend to the area immediately
surrounding a dwelling house….” Dunn, 480 U.S. at 300, 107 S.Ct. at 1139. The
concept of curtilage plays a part in determining the reach of the Fourth
Amendment’s protections. The Supreme Court used the concept of curtilage in
Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), to
distinguish between the area outside a person’s house which the Fourth
Amendment protects, and the open fields, which are afforded no Fourth
Amendment protection. In general, the curtilage is defined as the area around the
home which “harbors those intimate activities associated with domestic life and the
privacies of the home.” Dunn, 480 U.S. at 301 n. 4,107 S.Ct. at 1140 n. 4.
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
Whether the Fourth Amendment protects privacy interests within the curtilage of a
dwelling house depends on four factors: (1) the proximity of the area claimed to be
curtilage to the home; (2) the nature of the uses to which the area is put; (3)
whether the area is included within an enclosure surrounding the home; and, (4)
the steps the resident takes to protect the area from observation. Dunn, 480 U.S.
at 301, 107 S.Ct. at 1139. The Supreme Court has not squarely addressed the
applicability of the common law concept of curtilage to commercial property. Given
the Court’s view of the relationship between the Fourth Amendment and
commercial premises, however, we have little doubt that were the Court to
embrace the so-called “business curtilage” concept, it would, at a minimum,
require that the commercial proprietor take affirmative steps to exclude the public.
Such a requirement is apparently foreordained through a long line of case
beginning with See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943
(1967). In light of Bet-Air’s failure to exclude the public from the area immediately
surrounding its offices, we refuse to apply the so-called “business curtilage”
concept in this case.
Hall also attempts to distinguish this case from Greenwood, pointing out that a
private collector handled Bet-Air’s garbage. In Greenwood, the Court found that
the reasonableness of the expectation of privacy was further diminished due to the
fact that a garbage collector handled the garbage. Greenwood, 486 U.S. at 40,
108 S.Ct. at 1628. Hall argues that a conveyance of garbage to a private garbage
collector increases the objective reasonableness of Bet-Air’s expectation of
privacy. We do not read Greenwood as attributing any weight to such a distinction.
Rather, the Court’s reliance on the garbage’s conveyance to the garbage collector
is properly read as one more example of the fact that a third party was afforded
access to the discarded garbage. The Court noted that the garbage collector might
have sorted through the garbage or permitted others, including the police, to do so.
Greenwood, 486 U.S. at 40, 108 S.Ct. at 1628. We fail to see how contracting with
a private garbage collection service diminishes the probative value of the fact that
the garbage was conveyed to a third party. Presumably, both private and public
garbage collectors are equally able to sort through the garbage they collect.
Accordingly, we do not believe that Parks infringed upon any societal values the
Fourth Amendment protects when he searched Bet-Air’s garbage. Bet-Air did not
take sufficient steps to restrict the public’s access to its discarded garbage;
therefore, its subjective expectation of privacy is not one that society is prepared to
accept as objectively reasonable.
B. Prosecutorial Misconduct
1098
During the trial, Hall attempted to contradict the government’s assertion that he
sought to resell military parts when he incorrectly designated them for civilian use.
In closing arguments, Hall’s lawyer stated that the testimony of a government
witness, a former Bet-Air employee, “was that Hall told [the government witness] to
return the [restricted military parts], if she could, to the people that Bet-Air had
purchased it from.” *1098 In the government’s rebuttal closing argument, the
prosecutor stated:
if [the jury] can find anywhere in this record … that [the government
witness] was told by Terry Hall to return the goods … I will faint right
here on this floor because it never happened.
Hall’s lawyer objected immediately indicating that the transcript of the witness’s
testimony contradicted the prosecutor’s assertion. At the side bar conference,
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
Hall’s lawyer presented the district court with a trial transcript which purportedly
demonstrated the inaccuracy of the prosecutor’s statements. Following the side
bar conference, the district court gave a curative instruction and sustained Hall’s
objection. The district court, complying with the prosecutor’s request, instructed the
jury that the transcript of the government witness’s cross-examination testimony
did not support Hall’s lawyer’s assertion that the prosecutor had misstated the
evidence. The district court also instructed the jury that
[w]hat … the lawyers say is not evidence … and … you, of course, will
rely upon your own individual and collective memories as to what was
said and not said.
Following the district court’s instruction, the prosecutor stated in his rebuttal
closing:
I am telling you and you rely on your own recollection but I am telling
you that Knowles never testified nor is there any evidence that Mr. Hall
told her to return those goods.
Hall argues that he was denied a fair and impartial trial because the prosecutor’s
closing statements misstated the evidence and injected the prosecutor’s own
credibility into the trial. Furthermore, Hall contends the district court’s curative
instruction exacerbated the error and confirmed the prosecutor’s misstatements,
thereby prejudicing the jury against him. The government contends that Hall’s
lawyer contributed to the district court’s “misstatement” when he provided the court
with the wrong transcript of the government witness’s testimony. Additionally, the
government claims the evidence fully supported the prosecutor’s remarks and that
the witness’s testimony did not support the inference Hall sought to draw.
A prosecutor’s statement justifies the reversal of a conviction if it “undermined the
fairness of the trial and contributed to a miscarriage of justice.” United States v.
Obregon, 893 F.2d 1307, 1310 (11th Cir.1990). This court applies a two-part test
to claims of prosecutorial misconduct: the challenged statements must be
improper, and must have prejudicially affected the defendant’s substantial rights.
Obregon, 893 F.2d at 1310. A defendant’s substantial rights are prejudicially
affected when a reasonable probability arises that, but for the remarks, the
outcome would be different. Kennedy v. Dugger, 933 F.2d 905, 914 (11th
Cir.1991). Claims of prosecutorial misconduct are fact specific inquiries which
must be conducted against the backdrop of the entire record. Obregon, 893 F.2d
at 1310. Our review of this record convinces us that the prosecutor’s statements
did not undermine the fairness of the trial and did not contribute to a miscarriage of
justice.
At the time Hall’s lawyer made the objection, he had in his possession a transcript
of the cross-examination of the government’s witness rather than her redirect
testimony which, in fact, contained the language that allegedly would have
supported his objection. We have reviewed the witness’s redirect testimony and
find it ambiguous. We cannot say that it clearly supports the inference that either
the government or Hall sought to attach to it. Given this ambiguity, the prosecutor’s
remarks were not improper. We also do not believe that the prosecutor’s remarks
served to inject his credibility into the trial. Finally, we find no error in the district
court’s curative instruction. The district court instructed the jury that the witness’s
testimony was not in the cross-examination transcript. This statement was entirely
accurate: the disputed testimony was in the redirect transcript. We note, moreover,
that any confusion which might have existed was entirely attributable to Hall’s
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
lawyer when he provided the district court with the wrong transcript.
1099
*1099
C. Sentencing
Hall argues that the district court improperly applied the Sentencing Guidelines to
this pre-Guidelines case; therefore, it violated the Ex Post Facto Clause of Article I,
Section 9 of the U.S. Constitution.
We review a district court sentence for an abuse of discretion. United States v.
Funt, 896 F.2d 1288, 1298 (11th. Cir.1990). A sentence which falls within the
range the statute provides generally will not be reviewed on appeal. Funt, 896 F.2d
at 1298. The sentence the district court imposed was within the statutory limits
provided for the crimes of which Hall was convicted.[5] The Guidelines were merely
one of several factors which the district court considered in imposing sentencing.
Moreover, the district court on several occasions acknowledged that this was a
pre-Guidelines case. The district court did not abuse its discretion in imposing
sentence.
CONCLUSION
We find no error in the district court’s denial of the suppression motion and the
imposition of sentence, nor do we find any impropriety in the prosecutor’s closing
statements. Accordingly, Hall’s convictions and sentences are affirmed.
AFFIRMED.
[1] The government conceded that Hall had standing to bring the suppression motion.
[2] Compare Marshall v. Barlow’s, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305 (1978)
(noting that the Fourth Amendment’s protection of commercial property is based upon societal values
that have their roots in the origin of the Amendment) with Payton v. New York, 445 U.S. 573, 601, 100
S.Ct. 1371, 1387, 63 L.Ed.2d 639 (1980) (noting that the Fourth Amendment’s respect for the sanctity
of the home is based on traditions firmly rooted in the origins of the Republic).
[3] Donovan v. Dewey involved a federal mine inspector’s attempt, pursuant to a federal regulation, to
conduct a warrantless inspection of a stone quarry. Relying on a line of cases which permits the
warrantless inspections of businesses which operate in a pervasively regulated industry, the Court
found that the warrantless inspection provision of the regulation did not violate the Fourth Amendment.
Warrantless inspections of businesses have been justified by the need to further urgent federal
regulatory interest. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)
(warrantless inspection of gun dealers); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90
S.Ct. 774, 25 L.Ed.2d 60 (1970) (permitting warrantless search of retail liquor dealers if authorized by
Congress). This deviation from the Fourth Amendment’s warrant requirement in the area of pervasively
regulated industries stands in stark contrast to the Supreme Court’s historical view of the relationship
between the Fourth Amendment and the home. As then Justice Rehnquist noted, it is seriously doubtful
that Congress could authorize Constitutionally permissible warrantless entries into private residences to
further a strong interest in regulating a prohibited activity. See Donovan v. Dewey, 452 U.S. 594, 608,
101 S.Ct. 2534, 2543, 69 L.Ed.2d 262 (1981) (Rehnquist, J., concurring).
[4] By uncoupling the Fourth Amendment’s reach from traditional common law property interests the
Court undoubtedly sought to extend the Amendment’s coverage. See Katz v. United States, 389 U.S.
347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967) (noting that the Fourth Amendment protections
extends further and often have nothing to do with generalized notions of private property and, in any
event, protection of property is left primarily to the law of the individual states). In so doing, the Court
established that a property interest is neither necessary nor sufficient to invoke Fourth Amendment
protection. See also Brian J. Serr, Great Expectation of Privacy: A New Model For Fourth Amendment
Protection, 73 Minn.L.Rev. 583, 618 (1989).
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US v. Hall, 47 F. 3d 1091 – Court of Appeals, 11th Circuit 1995 – Google Scholar
[5] Hall was sentenced to four years and three months in prison. Title 18 U.S.C. § 371, a violation of
which was charged in Count I, permits a maximum sentence of five years imprisonment. Title 18 U.S.C.
§ 1001, violations of which were charged in Counts II, III, V through XI, XIII and XIV, permits a
maximum sentence of five years imprisonment. Title 22 U.S.C. §§ 2778(b) and (c), violations of which
were charged in Counts IV and XII, permits a maximum sentence of ten years of imprisonment.
https://scholar.google.com/scholar_case?case=978439786591326423&q=United+States+v.+Hall,+47+F.3d+1091&hl=en&as_sdt=2006[11/3/2018 9:16:39 AM]